A sample deed of trust (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. default by trustor in payment of any indebtedness secured by this trust deed or in the performance of any agreement under this trust deed, to collect and retain such rents, issues, and profits as they become due and payable. On any such default, beneficiary may at any time without notice, either in person, by agent, or by a court-appointed receiver, and without regard to the adequacy of any security for the indebtedness secured by this trust deed, enter on and take possession of the premises or any part of them, in its own name sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney fees, on any indebtedness secured by this trust deed, and in such order as beneficiary may determine. The entering on and taking possession of the premises, the collection of the rents, issues, and profits, and the application thereof as stated above shall not cure or waive any default or notice of default under this trust deed or invalidate any act done pursuant to such notice. 16. DEFAULT; BANKRUPTCY 16.1 On default by trustor in payment of any indebtedness secured by this trust deed, or in performance of any agreement herein contained, or if trustor is adjudicated bankrupt or made defendant in a bankruptcy or receivership proceeding, all sums secured by this trust deed shall, at beneficiary's option, immediately become due and payable. In the event of default, beneficiary shall execute or cause trustee to execute a written notice of such default and of beneficiary's election to cause the above-described property to be sold to satisfy the obligation hereof, and shall cause such notice to be recorded as then required by law. 16.2 On notice of sale as then required by law and elapse of the then-required time period after recordation of notice of default, trustee, without demand on trustor, shall sell the property at the time and place of sale fixed by it in the notice of sale, either as a whole or in separate parcels and in such order as it may determine, at public auction to the highest and best bidder for cash, payable at the time of sale. Trustee may postpone the sale of all or any part of the property by public announcement at the time and place of sale, and from time to time thereafter may postpone the sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to the purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in the deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including trustor, trustee, or beneficiary, as defined under this trust deed, may purchase at such sale. 16.3 After deducting all costs, fees, and expenses of trustee and of this trust, including the cost of evidence of title and reasonable counsel fees in connection with the sale, trustee shall apply the proceeds of the sale to the payment of all sums expended under the trust terms, not then repaid with accrued interest at the rate provided on the principal debt, all other sums then secured by this trust deed, and the remainder, if any, to the person or persons legally entitled to receive them. 17. APPLICATION OF TRUST DEED 17.1 This trust deed applies to, inures to the benefit of, and binds all parties to this agreement, their heirs, legatees, devisees, administrators, executors, successors, and assigns. The term "beneficiary" shall mean the holder and owner, including pledgee, of the _______________ (Note or Bond) secured by this trust deed, whether or not named as a beneficiary herein. Whenever the context of this trust deed so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. 18. ACCEPTANCE OF TRUST 18.1 Trustee accepts this trust when this trust deed, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this trust deed of any pending sale under any other trust deed or of any action or proceeding in which trustor, beneficiary, or trustee shall be a party, unless brought by trustee. 19. SUCCESSOR TRUSTEE 19.1 Beneficiary may, from time to time, as provided by statute, appoint another trustee in place of trustee herein named, and on such appointment, trustee herein named shall be discharged and the trustee so appointed shall be substituted as trustee with the same effect as if originally named trustee. 20. MULTIPLE TRUSTEES 20.1 If two or more persons are designated as trustee, all powers granted to trustee may be exercised by any of such persons, if the other person or persons are unable, for any reason, to act; and any recital of such inability in any instrument executed by any of such persons shall be conclusive against trustor, or trustor's heirs and assigns. ___________ (If appropriate, add: ________________________, the ______________ (wife or husband) of trustor, for the above-stated consideration, hereby relinquishes ___________ (her or his) right of ___________ (dower or curtesy) ______________ (and homestead) in and to the above-described premises.) 20.2 The undersigned trustor requests that a copy of any notice of default and of any notice of sale under this trust deed be mailed to trustor's address set forth above. In witness whereof, trustor has executed this trust deed the day and year first written above. ________________________________________ ______________________ Signature Date ________________________________________ ______________________ Si g nature Date DEED OF TRUST GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 398 DEED OF TRUST by a mortgagor-borrower to a mortgagee-lender to secure the payment of the borrower’s debt. Although a deed of trust serves the same purpose as a type of security, it differs from a mortgage. A deed of trust is an arrangement among three parties: the borrower, the lender, and an impartial trustee. In exchange for a loan of money from the lender, the borrower places LEGAL TITLE to real property in the hands of the trustee who holds it for the benefit of the lender, named in the deed as the beneficiary. The borrower retains equitable title to, and posses- sion of, the property. The terms of the deed provide that the transfer of legal title to the trustee will be void on the timely payment of the debt. If the borrower defaults in the payment of the debt, the trustee is empowered by the deed to sell the property and pay the lender the proceeds to satisfy the debt. Any surplus will be returned to the borrower. The right of the trustee to sell the premises is called FORECLOSURE by POWER OF SALE. It differs in several respects from the power of a mortgagee to sell mortgaged property upon default, which is called a judicial foreclosure. A foreclosure by power of sale is neither supervised nor con- firmed by a court, unlike a judicial foreclosure. Whereas the rights received by a purchaser at a foreclosure by power of sale are the same as those obtained at a judicial foreclosure, there is a practical difference. Because the sale has not been judicially approved, there is a greater possibility of LITIGATION overtitle, thereby making title to the purchased premises less secure than one pur- chased at a judicial foreclosure. In addition, the lender may purchase the property for sale under the provisions of a deed of trust, since the neutral trustee conducts the sale. This is not the case in a foreclosure, unless contract or statute provides otherwise, because the mortgagee must act impartially in selling the property to satisfy the debt. Some mortgages may, however, provide for foreclosure by power of sale. The procedure for a foreclosure by power of sale is regulat ed by statute, a characteristic shared by a judicial foreclosure. All interested parties must be given notice of the sale, which must be published in local newspapers, usually in the public notice columns, for a certain period of time as required by statute. The sale is usually open to the public to ensure that the property will be sold at its FAIR MARKET VALUE. DEEM To hold; consider; adjudge; believe; condemn; determine; treat as if; construe. To deem is to consider something as having certain characteristics. If an act is deemed a crime by law, then it is held to be a crime. If someone is deemed liable for damages, then he or she will have to pay them. DEFALCATION The misappropriation or embezzlement of money. Defalcation implies that funds have in some way been mishandled, particularly where an officer or agent has breached his or her fiduciary duty. It is commonly applied to public officers who fail to account for money received by them in their official capacity, or to officers of corporations who misappropriate company funds for their own private use. Colloquially, the term is used to mean any type of BAD FAITH, deceit, misconduct, or dishonesty. DEFAMATION Any intentional false communication, either writ- ten or spoken, t hat harms a person’sreputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person. Defamation may be a criminal or civil charge. It encompasses both written statements, known as libel, and spoken statements, called slander. The probability that a PLAINTIFF will recover damages in a defamation suit depends largely on whether the plaintiff is a public or private figure in the eyes of the law. The public figure law of defamation was first delineated in New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). In Sullivan, the plaintiff, a police official, claimed that false allegations about him appeared in the New York Times, and sued the newspaper for libel. The Supreme Court balanced the plaintiff’s interest in preserving his reputation against the public’s interest in freedom of expression in the area of political debate. It held that a public official alleging libel must prove actual malice in order to recover damages. The Court declared that the FIRST AMENDMENT protects open and robust debate on public issues even when such debate includes “vehement, caustic, unpleasantly sharp GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DEFAMATION 399 attacks on government and public officials.” A public official or other plaintiff who has volun- tarily assumed a position in the public eye must prove that defamatory statements were made with knowledge that they were false or with reckless disregard of whether they were false. Where the plaintiff in a defamation action is a private citizen who is not in the public eye, the law extends a lesser degree of constitutional protection to defamatory statements. Public figures voluntarily place themselves in a posi- tion that invites close scrutiny, whereas private citizens who have not entered public life do not relinquish their interest in protecting the ir reputation. In addition, public figures have greater access to the means to publicly counteract false statements about them. For these reasons, a private citizen’s reputation and privacy interests tend to outweigh free speech considerations and deserve greater protection from the courts. (See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 [1974].) Distinguishing between public and private figures for the purposes of defamation law is sometimes difficult. For an individual to be considered a p ublic figure in all situations, the person’s name must be so familiar as to be a household word—for example, Michael Jordan. Because most people do not fit into that category of notoriety, the Court recognized the limited- purpose public figure, who is voluntarily injected into a public controversy and becomes a public figure for a limited range of issues. Limited- purpose public figures, such as public figures, have at least temporary access to the means to counteract false statements about them. They also voluntarily place themselves in the public eye and consequently relinquish some of their privacy rights. For these reasons, false statements about limited-purpose public figures that relate to the public controversies in which those figures are involved are not considered defamatory unless they meet the actual-malice test set forth in Sullivan. Determining who is a limited-purpose public figure can also be problematic. In Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976), the Court held that the plaintiff, a prominent socialite involved in a scandalous DIVORCE, was not a public figure be cause her divorce was not a public controversy and because she had not voluntarily involved herself in a public controversy. The Court recognized that the divorce was newsworthy, but drew a distinction between matters of PUBLIC INTEREST and matters of public controversy. In Hutchinson v. Proxmire, 443 U.S. 111, 99 S. Ct. 2675, 61 L. Ed. 2d 411 (1979), the Court determined that a scientist whose federally supported research was ridiculed as wasteful by Senator William Prox- mire was not a limited-purpose public figure because he had not sought public scrutiny in order to influence others on a matter of public controversy, and was not otherwise well-known. FURTHER READINGS Collins, Matthew. 2001. The Law of Defamation and the Internet. New York: Oxford Univ. Press. Friedman, Jessica R. 1995. “Defamation.” Fordham Law Review 64 (December). Jones, William K. 2003. Insult to Injury: Libel, Slander, and Invasions of Privacy. Boulder: Univ. Press of Colorado. Smolla, Rodney A. 1999. Law of Defamation. 2d ed. Eagan, Minn.: West. CROSS REFERENCES Freedom of the Press; Libel and Slander. DEFAULT An omission; a failure to do that which is antici- pated, expected, or required in a given situation. Default is distinguishable from NEGLIGENCE in that it does not involve carelessness or imprudence with respect to the discharge of a duty or obligation but rather the intentional omission or nonperformance of a duty. To default on a debt is to fail to pay it upon its due date. Default in contract law implies failure to perform a contractual obligation. A default judgment is one that may be entered against a party in a lawsuit for failure to comply with a procedural step in the suit, such as failure to file an answer to a complaint or failure to file a paper on time. A DEFAULT JUDGMENT is not one that goes to the merits of a lawsuit but is procedural in nature. DEFAULT JUDGMENT Judgment entered against a party who has failed to defend against a claim that has been brought by another party. Under rules of civil procedure, when a party against whom a judgment for affirmative relief is sought has failed to plead (i.e., answer) or otherwise defend, the party is in default and a judgment by default may be entered either by the clerk or the court. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 400 DEFAULT DEFEASANCE CLAUSE A provision of a mortgage—an interest in land given to a mortgagee-lender to secure the payment of a debt—which promises that the mortgagor- borrower will regain title to the mortgaged property when all the terms of the mortgage have been met. Defeasance clauses are found in mortgages in the few states that still follow the common-law theory of mortgages. At early English COMMON LAW , a mortgagee who lent money to a mortgagor received in exchange a deed of DEFEASIBLE fee to the property, offered as security for the payment of the debt. Such title was subject to defeat or cancellation upon payment of the debt on the LAW DAY , that is, at its maturity, and the mortgagor would at that time regain title to the property. If the mortgagor failed to pay the debt, even by only one day, the mortgagee’s title became an estate in FEE SIMPLE absolute, which gave the mortgagee absolute ownership of the property. A defeasance Default Judgment UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK _______________________________________________X Plaintiff, ______ Civ. _______________ ( ) — against — DEFAULT JUDGMENT Defendant. _______________________________________________X This action having been commenced on _______________________________________________________________________ by the filing of the Summons and Complaint, and a copy of the Summons and Complaint having been personally served on the defendant, ___________________________________________________________________________ , on ______________________________ by _____________________________________________________ (STATE SPECIFICALLY HOW SERVICE WAS MADE ON DEFENDANT) personal service on __________________________________________________________________________ , and a proof of service having been filed on ____________________________________ and the defendant not having answered the Complaint, and the time for answering the Complaint having expired, it is ORDERED, ADJUDGED AND DECREED: That the plaintiff have judgment against defendant in the liquidated amount of $ ___________ with interest at _________ % from _____________________________________ amounting to $ ____________________ plus costs and disbursements of this action in the amount of $ _________________________ amounting in all to $ _________________________ . Dated: New York, New York _____________________ ___________________________________________________ U.S.D.J. This document was entered on the docket on __________________________________________________ . SDNY Web 5/99 (date) (name) (name) (date) (date) (date) A sample default judgment. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DEFEASANCE CLAUSE 401 clause embodies these common-law principles that govern this type of mortgage agreement. Defeasance clauses are not found in mort- gages based upon the LIEN theory, observed in most states. The mortgage creates a lien for the mortgagee on the mortgaged property, which gives the mortgag ee the right to its possession only after the mortgage has been foreclosed. Since the mortgage has not been given defeasi- ble title, there is no need for a defeasance clause. DEFEASIBLE Potentially subject to defeat, termi nation, or annulment upon the occurrence of a future action or event, or the performance of a condition subsequent. The most common legal application of the term is with respect to estates as interest in land, such as in the case of a conveyance or a LIFE ESTATE , which is defeasible upon the happening of a certain specified event, for example, the death of the person holding such an interest. DEFECT Imperfection, flaw, or deficiency. That which is subject to a defect is missing a requisite element and, therefore, is not legally binding. Defective SERVICE OF PROCESS,for A sample form letter providing notice of a product defect to the manufacturer. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Date:_______________________________ To:_________________________________ Dear________________________________: Notice is hereby provided that we have purchased a product manufactured, distributed, or sold by you and described as: You are advised of a product defect or warranty claim. In support of same we provide the following information: 1. Date of Purchase: 2. Nature of Defect: 3. Injuries or Damage: 4. Item Purchased From: This is provided to give you earliest notice of said claim. I request that you or your representative contact me as soon as possible. Very truly, _______________________________________ Name _______________________________________ Address _______________________________________ City, State, Zip _______________________________________ Telephone Number CERTIFIED MAIL, Return Receipt Requested Product Defect Notice GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 402 DEFEASIBLE example, is service that does not comply with a procedural or jurisdictional requirement. A defective will is one that has not been properly drawn up, has been obtained by unlawful means, or does not comply with a particular law. In some cases, however, defects can be cured; for example, defective service of process can be cured by the service of an amended complaint. In PRODUCT LIABILITY, a defective product is one that cannot be used for the purposes intended or is made dangerous as a result of a flaw or imperfection. Such a defect might exist in the entire design of a product or in the production of a particular individual prod uct. A latent defect is one that is not readily observable by the buyer of an item, whereas a patent defect is obvious or immediately apparent upon observation. A fatal defect is one that, due to its serious nature, serves to nullify a contract. DEFENDANT The person defending or denying; the party against whom relief or recovery is sought in an action or suit, or the accused in a criminal case. In every legal action, whether civil or criminal, there are two sides. The person suing is the PLAINTIFF and the person against whom the suit is brought is the DEFENDANT. In some instances, there may be more than one plaintiff or defendant. If an individual is being sued by his or her neighbor for TRESPASS, then he or she is the defendant in a civil suit. The per son being accused of MURDER by the state in a HOMICIDE case is the defendant in a CRIMINAL ACTION. DEFENSE The forcible repulsion of an unlawful and violent attack, such as the defense of one’s person, property, or country in time of war. The totality of the facts, law, and contentions presented by the party against whom a civil action or ciminal prosecution is instituted in order to defeat or diminish the plaintiff’s cause of action or the prosecutor’s case. A reply to the claims of the other party, which asserts reasons why the claims should be disallowed. The defense may involve an absolute denial of the other party’s factual allegations or may entail an affirmative defense, which sets forth completely new factual allega- tions. Pursuant to the rules of federal civil procedure, numerous defenses may be asserted by motion as well as by answer, whereas other defenses must be pleaded affirmatively. A frivolous defense is one that entails a vacuous assertion, w hich is not supported by argument or evidence. The rules of federal procedure provide that on motion such defense may be ordered stricken from the pleadings. A meritorious defense is one that involves the essence or substance of the case, as distin- guished from technical objections or delaying tactics. With respect to a crim inal charge, defenses such as alibi, consent, duress, ENTRAPMENT,igno- rance or mistake, infancy, insanity, intoxication, and SELF-DEFENSE can result in a party’s acquittal. DEFENSE DEPARTMENT The Department of Defense (DOD) is the executive department in the federal government that is responsible for providing t he military forcesneeded to deter war and to protect the security of the United States. The major elements of the military forces under its control are the Army, Navy, Air Force, and Marine Corps, consisting of about 1.5 million men and women on active duty. They are backed, in case of emergency, by 1 million members of reserve units. In addition, the DOD employs approximately 900,000 civilians. Although every state has some defense activities, the central headquarters of the DOD is in northern Virginia at the Pentago n, the “world’s largest office building.” The National Security Act of 1947 (50 U.S.C. A. § 401) created the National Military Establish- ment, which replaced the War Department and was later renamed the Department of Defense. It was established as an executive department of the government by the National Security Act Amendments of 1949 , with the secretary of defense as its head (5 U.S.C.A. § 101). Since 1949 many legislative and administrative changes have occurred, evolving the department into the structure under which it currently operates. Structure The DOD includes the Office of the Secretary of Defense, the military departments and the military service s within those departments, the chair of the Joint Chiefs of Staff and the Joint Staff, the unified combatant commands, the DOD agencies, the DOD field activities, and such other offices, agencies, activities, and commands GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DEFENSE DEPARTMENT 403 as may be established or designated by law or by the president or the secretary of defense. Office of the Secretary The secretary of defense is the principal adviser on defense policy to the president. The secretary is responsible for the formulation of general defense policy and DOD policy and for the execution of approved policy. Under the direc- tion of the president, the secretary exercises authority, direction, and control over the DOD. The deputy secretary of defense has full power and authority to act for the secretary of defense. Three positions are designated as unders ec- retary of defense. The undersecretary of defense for acquisition and technology chairs the Defense Acquisition Board and advises the secretary of defense on all matters relating to the acquisition system, research and development, test and evaluation, production, logistics, military con- struction, procurement, and economic affairs. The undersecretary of defense for policy advises the secretary of defense on policy matters relating to overall international security and political-military affairs, including NORTH ATLAN- TIC TREATY ORGANIZATION affairs, arms limitations agreements, and international trade and tech- nology. The undersecretary of defense for personnel and readiness develops policies and administra- tive processes to ensure that the military forces have sufficient readiness to execute the National Military Strategy; develops civilian and military personnel policies including health and drug policies, equal opportunity programs, and family issues and support; and oversees matters concerning the reserve components. Department of Defense Inspector General Secretary of Defense Deputy Secretary of Defense Office of the Secretary of Defense Under Secretaries Assistant Secretaries of Defense and Equivalents Joint Chiefs of Staff The Joint Staff Chairman JCS Vice Chairman JCS Chief of Staff, Army Chief of Naval Operations Chief of Staff, Air Force Commandant, Marine Corps Department of the Army Secretary of the Army Under Secretary and Assistant Secretaries of the Army Chief of Staff Army Army Major Commands and Agencies Department of the Navy Secretary of the Navy Under Secretary and Assistant Secretaries of the Navy Chief of Naval Operations Commandant of Marine Corps Navy Major Commands and Agencies Marine Corps Major Commands and Agencies Department of the Air Force Secretary of the Air Force Under Secretary and Assistant Secretaries of the Air Force Chief of Staff Air Force Air Force Major Commands and Agencies Defense Agencies Defense Advanced Research Projects Agency Defense Business Transformation Agency Defense Commissary Agency Defense Contract Audit Agency Defense Contract Management Agency Defense Finance and Accounting Service Defense Information Systems Agency Defense Intelligence Agency Defense Legal Services Agency Defense Logistics Agency Defense Security Cooperation Agency Defense Security Service Defense Threat Reduction Agency Missile Defense Agency National Geospatial-Intelligence Agency Nat. Security Agency/Central Security Service Pentagon Force Protection Agency DoD Field Activities American Forces Information Service Defense POW/MP Office Defense Technical Information Center Defense Technology Security Administration DoD Counterintelligence Field Activity DoD Education Activity DoD Human Resources Activity DoD Test Resource Management Center Office of Economic Adjustment TRICARE Management Activity Washington Headquarters Services Combatant Commands Central Command European Command Joint Forces Command Pacific Command Southern Command Special Operations Command Strategic Command Transportation Command Africa Command ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 404 DEFENSE DEPARTMENT The comptroller and chief financial officer of the DOD is the principal adviser and assistant to the secretary of defense for budgetary and fiscal matters, includ ing financial management, accounting policy, and systems and budget formulation and execution. The director of operational test and evalua- tion serves as a staff assistant and adviser to the secretary of defense, prescribing policies and procedures for the conduct of operational test and evaluation within the department, includ- ing assessments of operational effective ness and of the suitability of major defense acquisition programs. The assistant secretary of defense for com- mand, control, communications, and intelligence (C’s3I) is the principal staff assistant and adviser to the secretary of defense for C’s3I, information management, counterintelligence, and security countermeasures. The assistant secretary of defense for legislative affairs is responsible for maintaining a direct liaison with Congress, coordinating departmental actions relating to congressional consideration of the legislative program of the department, coordinating responses to requests for information by members of Congress, and arranging for witnesses from the DOD and the various military departments at congressional hearings on defense matters. The general counsel is the chief legal officer of the DOD and is responsible for the prepara- tion and processing of legislation, executive orders, and proclamations, and reports and comments thereon. The general counsel also serves as director of the Defense Legal Services Agency, providing legal advice and services for the Office of the Secretary of Defense, its field activities, and the defense agencies. The general counsel also administers the Defense Indus trial Security Clearance Review Program and the Standards of Conduct Ethics Program. The inspector general serves as an indepen- dent and objective official in the DOD. The inspector general is responsible for conducting, supervising, monitoring, and initiating audits, investigations, and inspections relating to pro- grams and operations of the department. The inspector general coordinates activities designed to promote economy, efficiency, and effective- ness in the administration of such programs and operations, and to prevent and detect fraud and abuse in them. The assistant secretary of defense for public affairs is responsible for the functional areas of the DOD, which include public and internal information, audiovisual activities, community relations, and security clearance. The assistant secretary also reviews information intended for public release, and implements programs under the FREEDOM OF INFORMATION ACT (5 U.S.C.A. § 552) and Federal Privacy Act (5 U.S.C.A. § 552a) within the DOD. The assistant secretary of defense for intelligence oversight conducts independent oversight inspections of DOD intelligence and counterintelligence operations to ensure com- pliance with legal requirements , and reviews all allegations that raise questions of legality or propriety involving intelligence and counterin- telligence activities. The director of administration and manage- ment serves as the principal staff assistant to the secretary and deputy secretary of defense on matters concerning department-wide organiza- tional and administrative management, and also serves as the director of the Washington Headquarters Service. Joint Chiefs of Staff The Joint Chiefs of Staff consists of a chair and vice chair, the chief of staff of the U.S. Army, the chief of naval operations, the chief of staff of the U.S. Air Force, and the commandant of the Marine Corps. The chair of the Joint Chiefs of Staff is the principal military adviser to the president, the NATIONAL SECURITY COUNCIL, and the secretary of defense. While serving, the chair holds the Secretary of Defense Robert Gates (left) speaks before the House Armed Services Committee during a hearing held to discuss the Defense Department’s budget. ALEX WONG/GETTY IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DEFENSE DEPARTMENT 405 grade of general or admiral and outranks all other officers of the armed forces. The chair of the Joint Chiefs of Staff helps the president and the secretary of defense to provide for the strategic direction and planning of the armed forces, including resource ALLOCA- TION , the assessment of the military strength of potential adversaries, and the preparation of both contingency plans and joint logistic and mobility plans. In addition, the chair coordi- nates military education and training, repre- sents the United States on the Military Staff Committee of the UNITED NATIONS, and convenes and presides over regular meetings of the Joint Chiefs of Staff. The Department of Defense in the Response to Terrorism Recent acts of TERRORISM have required the Department of Defense to reconsider some of its methods for protecting the United States from foreign threats. The SEPTEMBER 11TH ATTACKS perpetrated by the terrorist organization al Qaeda not only destroyed the World Trade Center towers in New York City but also severely damaged the Pentagon building in Virginia. In the months following these attacks, the U.S. military engaged in operations in Afghanistan, which had harbored suspected al Qaeda leader Osama bin Laden. Following the campaign against Afghanistan, the secretary of defense under President GEORGE W. BUSH, Donald Rumsfeld, become a central figure in the American media. One of the most publicized issues during Rumsfeld’s tenure was the indefinite detention and treatment of persons at the U.S. Guanta- namo Bay, Cuba, military prison who were suspected terrorists, and the ostensible trials before “military commissions” created by the Bush Administration to try detained enemy combatants for WAR CRIMES. The U.S. Supreme Court, in Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2005) held that neither the U.S. Constitution (including the inherent powers of the Execu- tive) nor any act of Congress expressly autho- rized the type of military commissions created by the Bush administration to try detained enemy combatants for war crimes. Absent that express authorization, the commissions were forced to comply with the ordinary laws of the United States and the laws of war, including parts of the Geneva Conventions and the statutory UNIFORM CODE OF MILITARY JUSTICE (UCMJ). In response to the Court’s ruling, Congress enacted the U.S. Military Commissions Act, Pub. L. 109-366, 120 Stat. 2600, in 2006. Its stated purpose was to “facilitate bringing to justice terrorists and other unlawful enemy combatants [defined therein] through full and fair trials by military commissions, and for other purposes.” But by 2009 only one combatant had been tried by the military commission’s tribunal. At that time, newly-elected President BARACK OBAMA signed EXECUTIVE ORDER 13492 on January 22, 2009, within 48 hours of taking office, which directed the closure of Guanta- namo within one year. He also ordered the temporary suspension (for 120 days) of all proceedings conducted by the Guantanamo Military Commission, and an immediate assess- ment of the prison itself to ensure that con- ditions for the remaining detainees would meet the humanitarian requirements of the Geneva Conventions. The Executive Order noted that some of the 240 remaining detainees had been held from four to six years without prosecution or formal charges. Another thorny issue for the department was the scandal surrounding abuse and mis- treatment of Iraqi prisoners by DOD personnel at Baghdad’s now infamous Abu Ghraib facility. The prison scandal stemmed from incident s that took place in 2004, when photographs of the prisoner abuse were leaked to the media. In April 2006, U.S. Army Lieutenant Colonel Steven L. Jordan became the first and only military officer to be criminally charged in relation to thes e incidents, but at least 11 U.S . enlisted soldiers were convicted and several officers were reprimanded or demoted. But that was not the end of DOD’s troubles with detainees. The release to the public of the detainee photographs became the subject of a Freedom of Informat ion Act (FOIA) request by the AMERICAN CIVIL LIBERTIES UNION (ACLU), denial of which resulted in a lawsuit on appeal to the U.S. Supreme Court for its 2009-2010 term. Department of Defense v. ACLU, No. 09- 160. (The other remaining scandal, involving the release of internal “torture memos,” implicated the DEPARTMENT OF JUSTICE more tha n the DOD.) The Department of Defense has restruc- tured other operations and developed new defense strategies in light of new threats against the United States. In 2002 the Departm ent redrafted the Unified Command Plan as part GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 406 DEFENSE DEPARTMENT the largest restructuring of the military since WORLD WAR II. The revised structure places more emphasis on terrorism and other threats, with considerable focus on the development of technologies to assist in fighting these threats. Homeland security has also been a primary focus for the department. Field Activities The American Forces Information Service, established in 1977 under the supervision of the assistant secretary of defense for public affairs, is responsible for the department’s internal information program and visual infor- mation policy. The Armed Forces Radio and Television Service and Broadcast Center and the American Forces Press and Publications Service (which includes among its many products the Current News Early Bird) function under the director of the American Forces Information Service. Current News Early Bird is a Pentagon- produced newspaper that contains clippings and analysis of defense-related articles from news- papers around the country. The American Forces Information Service provides policy guidance and oversight for departmental periodicals and pamphlets, the Stars and Stripes newspapers, military command newspapers, and the Defense Information School, among other projects. The Department of Defense Civilian Per- sonnel Management Service was established on August 30, 1993, and functions under the authority, direction, and control of the under- secretary of defense for personnel and readiness. It provides services in civilian personnel policy, support, functional information management, and civilian personnel administration to DOD components and their activities. The Department of Defense Education Activity (DODEA) was established in 1992 and also function s under the authority, direction, and control of the undersecretary of defense for personnel and readiness. It consists of three subordinate entities: the DOD dependents schools, the DOD Section 6 schools, and the Continuing Adult and Post-Secondary Educa- tion Office. The DODEA formulates, develops, and implements policies, technical guidance plans, and standards for the effective manage- ment of defense activities and programs both stateside and overseas. The Office of Civilian Health and Medi- cal Program of the Uniformed Services (OCHAMPUS) was established as a field activity in 1974. The office administers a civilian health and medical care program for retired service members and the spouses and dependent children of active duty, retired, disabled, and deceased service members, and also administers a program for payment of emergency medical and dental services provided to active duty service members by civilian medical personnel. The Defense Medical Programs Activity develops and maintains the department’s Uni- fied Medical Program to provide resources for all medical activities, including planning, pro- gramming, and budgeting construction projects for medical facilities. It also provides informa- tion systems and related communications and automated systems in support of the activities of the DOD Military Health Services System (MHSS), the Defense Enrollment Eligibility and Reporting System, the Tri-Service Medical Information System, the Reportable Disease Database, and other department-wide automat- ed MHSS information systems. The Defense Prisoner of War/Missing in Action Office was established on July 16, 1993, under the authority, direction, and control of the assistant secretary of defense for international security affairs. It provides centr alized manage- ment of prisoner of war–missing in action (POW-MIA) affairs with the DOD. The office provides DOD personnel to negotiate with officials of foreign governments to achieve the fullest possible accounting of missing U.S. military personnel and also assembles and admin- istrates information and databases on U.S. mili- tary and civilian personnel who are, or were, prisoners of war or missing in action. The office declassifies DOD documents and maintains open channels of communication between the department and Congress, POW-MIA families, and veterans’ organizations. The Defense Technology Security Adminis- tration was established on May 10, 1985, and functions under the control, direction, and authority of t he undersecret ary of defense for policy. This office is responsible for reviewing the in ternation al transfer of defense technology, goods, services, and munitions, consistent with U.S. foreign policy and national security objectives . The Office of Economic Adjustment is responsible for planning and managing the DOD’s economic adjustment programs and for assisting federal, state, and local officials GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DEFENSE DEPARTMENT 407 . Date DEED OF TRUST GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 39 8 DEED OF TRUST by a mortgagor-borrower to a mortgagee-lender to secure the payment of the borrower’s debt. Although a deed of trust. BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DEFEASANCE CLAUSE 401 clause embodies these common -law principles that govern this type of mortgage. RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 404 DEFENSE DEPARTMENT The comptroller and chief financial officer of the DOD is the principal